Ooley et al v. Citrus Heights Police Dept. et al

Filing 76

ORDER signed by Judge John A. Mendez on 1/3/2013 GRANTING 62 the CHPD Defendants' Motion to Dismiss, and ORDERING Plaintiff's 1983 claim against the CHPD Defendants DISMISSED with prejudice. Any remaining state law claim against the CHPD Defendants is DISMISSED without prejudice. Leave to amend the First Amended Complaint with respect to the CHPD Defendants is DENIED. (CHPD Defendants Citrus Heights Police Department, D Christensen, Christine Ford, Brian Barron, Chris Boyd, and Janet Schaefer DISMISSED). (Krueger, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARR OOLEY, et al.,

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2:12-cv-00095-JAM-CKD

Plaintiffs,

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No.

v.

ORDER GRANTING THE CHPD
DEFENDANTS’ MOTION TO DISMISS

CITRUS HEIGHTS POLICE
DEPARTMENT, et al.,
Defendants.

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This matter is before the Court on Defendants Citrus

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Heights Police Department, Brian Barron, Janet Schaefer, D.

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Christensen, Christine Ford, and Chris Boyd’s (collectively the

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“CHPD Defendants”) Motion to Dismiss the First Amended Complaint

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of Plaintiff made pursuant to Federal Rule of Civil Procedure

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12(b)(6) (Doc. #62).

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opposes the motion (Doc. #66).

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Plaintiff Garr Ooley (“Plaintiff”)

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This motion was determined to be suitable for decision
without oral argument. E.D. Cal. L.R. 230(g). The hearing
was originally scheduled for December 5, 2012.
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I.

BACKGROUND

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A.

Procedural History

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Several motions to dismiss preceded the current motion.

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The CHPD Defendants previously moved for dismissal of Plaintiff

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Janis Starkey’s claims, and that motion was granted with

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prejudice (Doc. #37).

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neighbors (the “Neighbor Defendants”) successfully moved to

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dismiss the federal claims against them with prejudice (Doc.

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#38).

A group of Plaintiffs Ooley and Starkey’s

The Court declined supplemental jurisdiction over

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Plaintiffs’ remaining state law claims against the Neighbor

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Defendants.

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and Yvonne Pickering, also neighbors, moved to dismiss the

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claims against them.

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Maurer was dismissed with leave to amend, his claim against

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Yvonne Pickering was dismissed with prejudice, and Plaintiff

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Starkey’s claim was dismissed with prejudice (Doc. #55).

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sum, all of Plaintiff Starkey’s claims were either dismissed

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with prejudice or the Court declined supplemental jurisdiction

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over them.

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Defendants and Yvonne Pickering were also dismissed with

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prejudice or the Court declined jurisdiction.

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First Amended Complaint (“FAC”) was filed (Doc. #59), Plaintiff

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Starkey’s claims were eliminated from this lawsuit and Plaintiff

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Ooley was only permitted to amend his claims with respect to the

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CHPD Defendants and Defendant Nicolas Maurer.

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Finally, the remaining defendants Nicolas Maurer

Plaintiff Ooley’s claim against Nicolas

In

Plaintiff Ooley’s claims against the Neighbor

By the time the

Plaintiff’s FAC contains a claim against the CHPD

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Defendants for violation of 42 U.S.C. § 1983 and a claim against

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Defendant Nicolas Maurer for aiding and abetting a violation of
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Plaintiff’s civil rights.

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dismiss the claim against them.

The CHPD Defendants now move to

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B.

Factual Allegations

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This action arises out of Plaintiff’s allegations that the

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CHPD Defendants violated his civil rights.

Plaintiff alleges

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that the CHPD Defendants made false statements that he was a

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sexual offender and pedophile during neighborhood meetings.

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false statements were allegedly made in retaliation for

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Plaintiff’s part in complaining to Defendant Nicholas Maurer

The

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about activities occurring in Defendant Maurer’s residence that

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Plaintiff and other neighbors found offensive.

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Plaintiff’s theory that Defendant Maurer somehow convinced the

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CHPD Defendants to take retaliatory action.

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that the false statements then induced the Neighbor Defendants

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to conduct a campaign of harassment against him.

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It is

Plaintiff alleges

The remainder of the FAC primarily alleges that Plaintiff

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was harassed by the CHPD and Neighbor Defendants in a series of

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minor incidents in which the neighbors allegedly entered

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property owned by Starkey and harassed Plaintiff.

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ultimately arrested by CHPD for assault, battery, and vandalism

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after an incident in his driveway.

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assault and battery in state court but convicted of vandalism.

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While Plaintiff was in CHPD custody after his arrest, he alleges

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that Defendant Barron made two statements to him:

Plaintiff was acquitted of

1) I only answer to two things: the Seventh
Day Adventist Church and my two daughters.
2) I am glad to be part of the group that
took part in your arrest to remove people
like you from this community.

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Plaintiff was

FAC ¶ 89.
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Plaintiff alleges that federal jurisdiction exists at this
stage of the proceedings pursuant to 28 U.S.C. §§ 1331 and 1343.

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II.

OPINION

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A.

Legal Standard

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A party may move to dismiss an action for failure to state

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a claim upon which relief can be granted pursuant to Federal

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Rule of Civil Procedure 12(b)(6).

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dismiss, the court must accept the allegations in the complaint

In considering a motion to

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as true and draw all reasonable inferences in favor of the

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plaintiff.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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are mere “legal conclusions,” however, are not entitled to the

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assumption of truth.

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)).

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plead “enough facts to state a claim to relief that is plausible

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on its face.”

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appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

Assertions that

Ashcroft v. Iqbal, 556 U.S. 662, 678

To survive a motion to dismiss, a plaintiff needs to

Twombly, 550 U.S. at 570.

Dismissal is

Balistreri v.

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could

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not be saved by amendment.”

Eminence Capital, L.L.C. v. Aspeon,
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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

Discussion

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The CHPD Defendants argue that they are entitled to

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dismissal because the FAC fails to state a federal claim against

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them.

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law tort claim.

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federal claim, the complaint against them must be dismissed.

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Plaintiff responds that the FAC alleges violations of the

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following federal rights:

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They contend that if any claim is stated, it is a state

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The CHPD Defendants argue that without a valid

The right to procedural due process arising from the

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Fifth and Fourteenth Amendments to the U.S. Constitution, i.e.,

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wrongful arrest, malicious prosecution, inverse condemnation,

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and uncompensated taking of property;

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2.

The right to substantive due process arising from the

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Fifth and Fourteenth Amendments to the U.S. Constitution, i.e.,

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defamation and quiet enjoyment of property;

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3.

The prohibition against unreasonable searches and

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seizures arising from the Fourth Amendment to the U.S.

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Constitution, i.e., wrongful arrest and seizing personal

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property;

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4.

The rights to freedom of religion and to petition the

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government guaranteed by the First Amendment to the U.S.

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Constitution; and

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5.

The right to equal protection arising from the

Fourteenth Amendment to the U.S. Constitution.

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1.

Plaintiff’s Arrest

The CHPD Defendants argue that Plaintiff’s arrest was
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lawful and cannot, as a matter of law, provide the basis for a

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federal civil rights claim.

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C to the FAC, which is a copy of Plaintiff’s state court

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conviction resulting from his arrest.

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allegations rely on his allegedly wrongful arrest, and if the

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CHPD Defendants are correct, those claims MUST fail.

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responds that his conviction is immaterial because he was

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acquitted of assault and battery, even if he was convicted of

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vandalism.

The CHPD Defendants rely on Exhibit

A number of Plaintiff’s

Plaintiff

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In order to state a claim based on a wrongful arrest,

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§ 1983 plaintiffs must allege that 1) the defendants acted under

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color of state law, and 2) “the defendants’ conduct deprived

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them of their Fourth Amendment right to be free from arrest

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unsupported by warrant or probable cause.”

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Yolo, 814 F. Supp. 885, 891 (E.D. Cal. 1993).

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exists when the facts and circumstances within the arresting

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officer’s knowledge are sufficient to warrant a prudent person

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to believe that a suspect has committed, is committing, or is

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about to commit a crime.”

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1005 (9th Cir. 1995) (quotations omitted).

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may not bring a claim that challenges or calls into question a

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state law conviction unless he shows that the arrest was

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declared invalid or called into question under state law or

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federal habeas proceedings.

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703 (9th Cir. 2003); Heck v. Humphrey, 512 U.S. 477, 486–87

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(1994).

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Orozco v. Cnty. of
“Probable cause

Mackinney v. Nielsen, 69 F.3d 1002,
A § 1983 plaintiff

Guerrero v. Gates, 442 F.3d 697,

In this case, it is undisputed that Plaintiff was convicted
of vandalism.

Plaintiff has not alleged that the conviction was
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overturned or otherwise called into question through appropriate

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proceedings.

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probable cause would necessarily call into question his state

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court conviction for vandalism.

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Plaintiff’s vandalism conviction by indicating that the

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arresting officer did not have sufficient basis to believe that

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Plaintiff committed a crime.

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by the doctrine announced in Heck v. Humphrey.

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Thus, a finding that Plaintiff’s arrest lacked

Such a finding would undermine

Accordingly, this claim is barred

Plaintiff cites state law authority for the proposition

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that a § 1983 wrongful arrest claim may proceed when acquittal

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on at least one charge is obtained.

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Foundation v. Graham, 72 Cal.App.4th 1135 (1999), is

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inapplicable to the present matter.

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common law claim for malicious prosecution between civil

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litigants, not a § 1983 or even state law wrongful arrest claim.

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Id. at 1141.

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based on Plaintiff’s arrest fail as a matter of law.

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2.

That case, Sierra Club

Sierra Club involved a

The CHPD Defendants have shown that the claims

Equal Protection

Plaintiff alleges that he was treated poorly by the CHPD

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Defendants because he is not a member of the Seventh Day

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Adventists religious group.

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entirely on the single comment made by Defendant Barron after

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Plaintiff’s arrest.

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Defendant Barron’s comment occurred after the arrest and there

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is no factual allegation that any of the CHPD Defendants knew

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that Plaintiff was not a Seventh Day Adventist.

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Plaintiff’s claim is predicated

The CHPD Defendants point out that

“[T]he [First Amendment to the] Constitution guarantees
that government may not coerce anyone to support or participate
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in religion or its exercise, or otherwise act in a way which

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‘establishes a [state] religion or religious faith, or tends to

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do so.’”

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Lynch v. Donnelly, 465 U.S. 668, 669 (1984)).

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“Equal Protection Clause of the Fourteenth Amendment commands

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that no State shall ‘deny to any person within its jurisdiction

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the equal protection of the laws,’ which is essentially a

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direction that all persons similarly situated should be treated

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alike.”

Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting
Similarly, the

City of Cleburne, Tex. v. Cleburne Living Ctr., 473

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U.S. 432, 439 (1985).

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the Equal Protection clause, the CHPD Defendants are prohibited

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from harassing Plaintiff because he is not a Seventh Day

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Adventist.

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Thus, under both the First Amendment and

In this case, the FAC is devoid of facts to support

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Plaintiff’s religion based claims.

Defendant Barron’s off-hand

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comment cannot sustain the allegation that Plaintiff was

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targeted because of his religion.

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Defendant Barron merely identified his personal religious

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beliefs.

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by him or any of the CHPD Defendants on the basis of religion.

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Indeed, such a claim contradicts the central theory of

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Plaintiff’s case – that he was targeted because he organized a

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neighborhood petition and presented it to Nicolas Maurer.

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Accordingly, Plaintiff has failed to state a claim that his

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First or Fourteenth Amendment rights were violated because of

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his religion.

According to the FAC,

He did not indicate that any official action was taken

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3.

Substantive Due Process

Plaintiff next argues that he has alleged a violation of

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his substantive due process rights arising out of the Fourteenth

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Amendment.

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the CHPD Defendants deprived Plaintiff of the quiet enjoyment of

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his residence.

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be dismissed because the facts pled by Plaintiff do not support

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a constitutional claim.

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Plaintiff bases this claim on the allegation that

The CHPD Defendants argue that this claim should

“Federal courts have ‘always been reluctant to expand the

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concept of substantive due process because guideposts for

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responsible decisionmaking in this uncharted area are scarce and

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open ended.’”

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2006) (quoting Albright v. Oliver, 510 U.S. 266, 271–72 (1994)).

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“[T]he Fourteenth Amendment is not a ‘font of tort law to be

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superimposed upon whatever systems may already be administered

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by the States . . . .’” Cnty. of Sacramento v. Lewis, 523 U.S.

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833, 848 (1998) (quoting Paul v. Davis, 424 U.S. 693, 701

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(1976)).

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Brittain v. Hansen, 451 F.3d 982, 990 (9th Cir.

In the Court’s order dismissing Plaintiff Starkey’s

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substantive due process claim (Doc. #37 at 7-8), the Court

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declined to find that substantive due process protects a right

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to quiet enjoyment of property.

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arguments that the Court previously rejected in Plaintiff

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Starkey’s case.

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prior holding that substantive due process does not extend to a

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right of quiet enjoyment and that there is no reason for such an

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expansion.

Plaintiff relies on the same

There is no reason to reconsider the Court’s

This claim is therefore dismissed.

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Takings Clause

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Plaintiff also contends that he suffered an uncompensated

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taking of property when his neighbors instigated a campaign of

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harassment against him.

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Plaintiff does not plead sufficient facts to maintain his claim.

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In order to state a claim under the Fifth Amendment, a

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plaintiff must allege that private property was taken for a

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public use without just compensation.

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Allen v. Wood, 970 F. Supp. 824, 831 (E.D. Wash. 1997).

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The CHPD Defendants respond that

U.S. Const. Amend. V;

The Court agrees with the CHPD Defendants.

The FAC

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contains few facts to support a violation of the takings clause.

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Importantly, Plaintiff argues in his opposition that the taking

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resulted from the conduct of his neighbors, not the CHPD

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Defendants.

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of private property for a public use, i.e., some sort of state

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action.

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harassment cannot constitute a taking.

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is dismissed.

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A key element of an unlawful taking is the taking

Thus, Plaintiff’s neighbors’ alleged campaign of

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Accordingly this claim

Right to Petition Government

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Plaintiff argues that he was singled out for mistreatment

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by the CHPD Defendants because he urged the CHPD to conduct an

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internal affairs investigation of the neighborhood meetings

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being held at Nicolas Maurer’s house.

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paragraphs 113-116 of the FAC to support his claim.

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Defendants seek dismissal of this claim on the grounds that the

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FAC never explicitly states that Plaintiff requested an internal

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affairs investigation, and it is impossible to determine from

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the FAC what such an investigation was to address.
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Plaintiff cites
The CHPD

The CHPD

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Defendants also argue that there is no allegation that Plaintiff

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suffered injury because of his request for an investigation.

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The Court first finds that even if the exact details of

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Plaintiff’s request for an investigation are unclear, he has

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successfully alleged that he made a protected request.

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Plaintiff references his complaint to CHPD several times, and

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indicates explicitly that he was concerned about neighborhood

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meetings occurring at Nicolas Maurer’s house.

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allegations, the Court is able to draw a reasonable inference

From these

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that Plaintiff sought to complain about and receive redress for

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the CHPD Officers’ alleged participation in those meetings.

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Plaintiff’s claim is deficient, however, because there is

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no allegation that the CHPD Defendants targeted him or

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retaliated against him because he asked for an internal affairs

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investigation.

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preceded Plaintiff’s complaints to CHPD, so they were not

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retaliatory.

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cannot be considered retaliatory without violating Heck v.

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Humphrey.

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It is clear from the complaint that the meetings

As discussed above, Plaintiff’s later arrest

As a result, this claim is also dismissed.
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Defamation

Finally, Plaintiff contends that the CHPD Defendants are

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liable for the alleged statements made about him in neighborhood

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meetings held at Nicolas Maurer’s house.

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that the defamatory statements rise to the level of a

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constitutional claim because he alleges that the defamation

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resulted in “an ensuing criminal case and other loss of quiet

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enjoyment.”

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defamation does not give rise to a constitutional claim because

FAC ¶ 44.

Plaintiff contends

The CHPD Defendants contend that

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it is a state law tort cause of action.
An injury to reputation is not protected by the due process

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clause of the Fourteenth Amendment unless the reputational

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injury is accompanied by a cognizable injury to a property or

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liberty interest.

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Cir. 1991) (citing Paul v. Davis, 424 U.S. 693, 703 (1976)).

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The requirement that a reputational injury be coupled with some

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other injury is known as the “stigma-plus” test.

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stems from the general idea that § 1983 jurisprudence is not “a

Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th

Id.

This rule

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font of tort law to be superimposed upon whatever systems may

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already be administered by the States.”

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693, 701 (1976).

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Paul v. Davis, 424 U.S.

Plaintiff’s FAC lacks the “plus” component of the “stigma-

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plus” test.

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as the constitutionally cognizable injuries under the “plus”

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component of the test.

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the level of § 1983 violations for the reasons previously

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discussed.

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harassment conducted by his neighbors resulted from the CHPD

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Defendants’ defamatory statements.

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actors is also not a constitutional injury.

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that state action causing change to a person’s rights or status

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under state law is required to state a constitutional claim).

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Accordingly, Plaintiff’s reputational claim falls under state

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defamation law and it cannot sustain his § 1983 cause of action.

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He relies on loss of quiet enjoyment and his arrest

Those claims, however, do not rise to

Plaintiff also mentions that the alleged campaign of

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Mere harassment by private
Id. at 711 (holding

Monell Liability

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Plaintiff argues that the City of Citrus Heights and CHPD

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are liable for the constitutional violations of the individual
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officers under the theory announced in Monell v. Department of

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Social Services of New York, 436 U.S. 658 (1978).

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Respondeat superior liability does not apply to actions

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against local government entities under § 1983.

See Monell, 436

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U.S. at 691.

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local government entity, a plaintiff must establish “(1) that he

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possessed a constitutional right of which he was deprived;

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(2) that the municipality had a policy; (3) that this policy

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‘amounts to deliberate indifference’ to the plaintiff’s

Therefore, to prevail in a civil action against a

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constitutional right; and (4) that the policy is the ‘moving

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force behind the constitutional violation.’”

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Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)

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(quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).

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The first element of Monell liability is that the plaintiff

Oviatt By &

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suffered a constitutional violation.

For the reasons already

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discussed, Plaintiff has not alleged that his constitutional

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rights were violated.

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dismissed.

Accordingly, this claim is also

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C.

Conclusion

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Plaintiff argues that the FAC properly states a claim

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pursuant to 42 U.S.C. § 1983 under several theories.

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the theories presented by Plaintiff, however, is not sustained

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by the factual allegations in the FAC.

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§ 1983 claim and the derivative Monell claim are dismissed in

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their entirety.

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Each of

Accordingly, Plaintiff’s

The basis of the CHPD Defendants’ current motion is that

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Plaintiff’s claims against them are actually state law tort

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claims, which implicitly survive the present motion to dismiss.
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In light of the Court’s dismissal of Plaintiff’s sole federal

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claim against the CHPD Defendants, the Court no longer has

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federal question jurisdiction over the CHPD Defendants pursuant

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to 28 U.S.C. § 1331.

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discretion to exercise jurisdiction over any remaining state law

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claims against the CHPD Defendants because there is no

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jurisdictional basis independent of 28 U.S.C. § 1367.

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v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 2002).

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Court hereby declines to exercise supplemental jurisdiction over

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the CHPD Defendants, any remaining state law claims against them

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are dismissed without prejudice, and the CHPD Defendants are

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dismissed from this lawsuit.

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It is therefore within the Court’s

Mendoza
The

The last remaining issue is whether or not leave to amend

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Plaintiff’s allegations for a second time should be granted.

In

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this case, Plaintiff originally submitted a 98 page complaint

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accompanied by over 50 pages of exhibits (Doc. #1).

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with its exhibits is over 100 pages long.

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several motions to dismiss in this case, the Court has a clear

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picture of the nature and extent of Plaintiff’s allegations.

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The dispute giving rise to this case is best characterized as a

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petty neighborhood dispute that escalated into something

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somewhat more serious.

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violation arising from the CHPD Defendants’ conduct is absent.

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Therefore, the Court finds that leave to amend is not warranted

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because Plaintiff cannot state a federal claim based on the

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circumstances giving rise to this lawsuit.

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the Court declines jurisdiction over any remaining state law

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claims, leave to amend the state law claims is denied because

The FAC

After ruling on

Any connection to a constitutional

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Additionally, since

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any amendment would be futile for lack of jurisdiction.

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III. ORDER

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Plaintiff’s § 1983 claim against the CHPD Defendants is

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dismissed with prejudice.

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the CHPD Defendants is dismissed without prejudice.

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amend the First Amended Complaint with respect to the CHPD

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Defendants is denied.

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Dated: January 3, 2013

Leave to

IT IS SO ORDERED.

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Any remaining state law claim against

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____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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